Unfair dismissal; termination of employment

Unfair dismissal; termination of employment; the process

The manner in which an employer terminates the employment of an employee is almost as important as whether there is a valid reason for the dismissal. For example, here is an extract from a Fair Work Commission case which makes just this point.

“An employer has an obligation to advise an employee of their dismissal in a clear and articulate manner. Whilst a termination can be provided verbally, to avoid confusion and future debate, terminations should be notified in writing. If written correspondence cannot be provided on the day of termination, correspondence confirming the employee’s termination should be sent to the employee as soon as possible after the event.

In Burns v Aboriginal Legal Service of WA 1, a Full Bench of the AIRC held:

“[24] As we have already stated, the facts of this matter are not in dispute. The letter of termination purports to make the termination effective from 14 April 2000. The letter, however, was dated 18 April 2000 and was delivered by courier to the appellant’s home address on 19 April 2000. In our view, a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated. The earliest that such communication could be said to have occurred in this case was the date upon which the letter of termination was received at her home address, ie. 19 April 2000.”

(my emphasis)

It is highly unusual for a Respondent, if they were of the opinion that they had already terminated an employee, not to repeat this decision to the employee, particularly if the employee was acting as if they were still employed. In this case, the Applicant was sending in his doctor’s certificates to the Respondent to explain his absences from work. The Applicant was clearly of the opinion that his employment was ongoing.

Conclusion

I find that the Applicant was not aware of his termination until he received his termination letter on 25 August 2017. Following the obiter of the Full Bench in Burns, I find that the Applicant was terminated on 25 August 2017.

I find that the Applicant’s application has been lodged within the statutory timeframe in accordance with section 394(2)(a) of the Act.”

Akhter v Student Biryani Pty Ltd – [2017] FWC 6632 – 22 December 2017 – Riordan C